WVC 20 - 2 - 23 A
§20-2-23a. Whitewater commission; powers and duties of commission
and division of natural resources; allocations; civil
and criminal penalties for violations.
(a) There is hereby created a whitewater commission within the
division of natural resources. The commission shall consist of the
director of the division of natural resources or his or her
designee; the director of the division of parks and tourism or his
or her designee; three representatives of private river users who
have no affiliation with any commercial river enterprise to be
appointed by the governor: Provided, That no more than one
representative of the private river users may be from each
whitewater zone; and four persons representing four different
licensed commercial whitewater outfitters currently operating
within the state to be appointed by the governor. The
superintendent of the New River Gorge National Park or his or her
designee shall be a nonvoting member of the commission. All
appointed members of the commission shall be citizens and residents
of West Virginia. Of the four representatives of commercial
outfitters, two persons shall represent commercial whitewater
outfitters holding or controlling through corporate affiliation or
common ownership multiple licenses in West Virginia and two persons
shall represent commercial whitewater outfitters in West Virginia
who hold only a single license and who have no common ownership or
corporate affiliation with another licensee, the director of the
division of natural resources shall serve as chairperson of the commission. Of the seven members of the commission first appointed
by the governor, two shall be appointed for a term of one year, two
for a term of two years and three for a term of three years.
Thereafter, the terms of all appointed members of the commission
are for three years. Members shall serve until their successors
have been appointed and any vacancy in the office of a member shall
be filled by appointment for the unexpired term. Members
representing commercial outfitters who have served at least two
years on the commission are not eligible for reappointment to a
successive term.

(b) The commission has the following powers and duties:

(1) To investigate and study commercial whitewater rafting,
outfitting and activities related thereto which take place along
the rivers or waters of the state;

(2) To designate any such rivers or waters or any portions
thereof as "whitewater zones" for which commercial whitewater
rafting, outfitting and activities are to be investigated and
studied, and to determine the order and the periods of time within
which the investigations and studies are to be conducted. The
commission shall first investigate and study those whitewater zones
which it finds to present serious problems requiring immediate
regulation, including, without limitation, safety hazards and
problems of overcrowding or environmental misuse;

(3) To restrict, deny or postpone the issuance of licenses to
additional commercial whitewater outfitters seeking to operate in areas and portions of rivers and waters in this state designated
whitewater zones by action of the director of the division of
natural resources as authorized under prior enactment of this
section and so designated by the filing of a written notice entered
upon the records of the division containing the designation and
reasonable description of the whitewater zone: Provided, That in
consideration of the consolidation occurring among outfitting
companies providing rafting services on the Gauley River, the
commission shall grant one additional whitewater rafting license
for the Gauley River on or before the first day of July, one
thousand nine hundred ninety-nine, with preference being given in
the selection process to the applicant best satisfying the
following criteria: (i) The applicant demonstrates a record of
providing commercial rafting and related whitewater services in a
safe and lawful manner on the New River and other rivers; (ii) the
applicant has continuously engaged for three or more years in the
commercial rafting business on the New River and has, or can
obtain, the necessary equipment and facilities to support Gauley
River operations; (iii) the seniority of the application as
measured by the length of time the applicant has sought a Gauley
River license with the more senior application given preference;
(iv) that the applicant is not affiliated with, operated or owned
by an existing Gauley River licensee; (v) that the applicant has no
common ownership with an existing Gauley River licensee; and (vi)
that the economic benefit represented by the award of a Gauley River license will serve to assist the promotion of tourism and the
delivery of outfitting services beyond Fayette and Nicholas
counties. In authorizing the issuance of an additional Gauley
River license, it is the intention of the Legislature that the
commission not increase the carrying capacity of a current Gauley
River licensee, but that the commission promote and maintain
competition among licensees by increasing the number of independent
outfitters operating on the Gauley;

(4) To commission such studies as are necessary to determine
the physical carrying capacity and monitor the levels of use on the
New, Gauley, Cheat, Shenandoah and Tygart rivers and how each
relates to the overall quality of the rafting experience, the
economic impact of rafting, tourism and employment in the state and
the safety of the general public: Provided, That if, during a
study period, the commission deems that overcrowding is not a
problem on any whitewater zone on the Cheat, Shenandoah and Tygart
rivers, or on the New River upstream of the confluence of the
Greenbrier and New rivers and on the Gauley River upstream of the
Summersville Dam, then it may issue a license;

(5) Based on the findings of a study of the carrying capacity
of a river, to formulate rational criteria for an allocation
methodology for the river subject to the study, including, but not
limited to, a minimum allocation for each river studied;

(6) To immediately implement a freeze on mandated changes in
use allocations for the licenses of existing licensees on moratorium sections of the Gauley and New rivers as defined in
subsection (d) of this section. All such licenses shall carry the
use allocation in effect on the second day of May, one thousand
nine hundred ninety-two. The commission shall implement allocation
methodologies for other rivers as the commission, after appropriate
study, may deem necessary with all such allocation methodologies
implemented by rules promulgated pursuant to chapter twenty-nine-a
of this code;

(7) To determine administrative policies relating to
regulation of the whitewater industry and to administer such
policies, except that the commission shall delegate to the director
of the division of natural resources or his or her designee the
authority to administer the day-to-day responsibilities of the
commission pursuant to this section and may vest in the director of
the division of natural resources or his or her designee the
authority to make determinations with respect to which it is not
practicable to convene or to poll the commission, within guidelines
established by the commission;

(8) To review all contracts or agreements with governmental
agencies related to whitewater studies or regulation, and any
negotiations related thereto;

(9) To verify reports by outfitters of numbers of river users
and guides, to monitor the extent of the crowding conditions on the
rivers and to establish a system for reporting the number of river
users and guides on each whitewater expedition;

(10) To regulate the issuance, transfer, and renewal of
licenses. However, licenses issued to commercial whitewater
outfitters or use allocations or other privileges conferred by a
license may be transferred, sold, offered as security to financial
institutions or otherwise encumbered, upon notice in writing to the
commission and the director of the division of natural resources,
subject to the following limitations: (i) The commission may
refuse a transfer upon a finding that there is reasonable cause to
believe that the safety of members of the public may be adversely
affected by the transfer; and (ii) the commission shall require
that taxes, workers' compensation and other obligations due the
state be paid prior to any transfer;

(11) To collect, for the duration of a study period
established in subdivision (4) of this subsection, an annual
license fee of five hundred dollars for each river on which a
commercial whitewater outfitter operates. The annual per river
license fee is limited to the Cheat, Gauley, New, Shenandoah and
Tygart rivers. The annual license fee for a commercial whitewater
outfitter operating on a river not so designated is five hundred
dollars regardless of the number of rivers operated on. A
commercial whitewater outfitter who is operating on a river
designated in this subdivision and who has paid the annual per
river license fee may not be required to pay an additional annual
license fee to operate on a nondesignated river. The commercial
whitewater outfitter license shall be issued by the commission and is for a period of ten years: Provided, That an outfitter pays the
required annual license fee. If an outfitter fails to pay the
license fee, then the license shall be suspended until the license
fee is paid. Licenses are subject to the bonding provisions set
forth in section twenty-three-d of this article and the revocation
provisions set forth in the rules promulgated by the director of
the division of natural resources. License fees shall be used by
the division of natural resources for the purpose of enforcing and
administering the provisions of this section;

(12) To establish a special study and improvement fee to be
paid by outfitters and to establish procedures for the collection
and enforcement of the special study and improvement fee;

(13) To establish a procedure for hearings on violations of
this section and rules promulgated thereunder and to establish
civil penalties for violations of this section and rules
promulgated thereunder; and

(14) To approve rules promulgated by the director of the
division of natural resources pursuant to chapter twenty-nine-a of
this code, with respect to commercial whitewater outfitters
operating upon the waters of the state, whether or not such waters
have been designated whitewater zones, which relate to: (i)
Minimum safety requirements for equipment; (ii) standards for the
size of rafts and number of persons which may be transported in any
one raft; (iii) qualifications of commercial whitewater guides; and
with respect to waters designated whitewater zones; (iv) standards for the number of rafts and number of persons transported in rafts.

(c) The commission shall meet upon the call of the chairperson
or a majority of the members of the commission. However, the
commission shall meet at least quarterly and shall conduct business
when a majority of the members are present. At the meetings, the
commission shall review all data, materials and relevant findings
compiled relating to any investigation and study then under
consideration and, as soon as practicable thereafter, the
commission may recommend rules to govern and apply to the
designated whitewater zone(s). The commission may meet at its
discretion for the purpose of considering and adjusting allocations
and review fees and proposed expenditures. A budget shall be
approved for each fiscal year for the expenditure of funds subject
to the commission's control. The commission may not limit the
number of commercial whitewater outfitters operating on rivers not
designated as whitewater zones, nor may the commission limit the
number of rafts or total number of persons transported in rafts by
commercial whitewater outfitters on rivers not designated as
whitewater zones. Commission members shall be reimbursed all
reasonable and necessary expenses incurred in the exercise of their
duties.

(d) Special provisions for the New River and the Gauley River:

(1) After the issuance of the Gauley River rafting license
provided for in subdivision (3), subsection (b) of this section, a
moratorium shall be imposed by the commission upon the issuance of additional commercial rafting licenses on whitewater zones of the
New River between the confluence of the Greenbrier and New rivers
and the confluence of the New and Gauley rivers and upon whitewater
zones of the Gauley River from the Summersville Dam to the
confluence of the New and Gauley rivers. The moratorium hereby
imposed shall continue until such time as the commission is
authorized by the Legislature to discontinue the moratorium.

(2) For the portions of the Gauley and New rivers subject to
the moratorium imposed by this section, the minimum use allocation
conferred by a license is one hundred twenty for each designated
section of a whitewater zone on the Gauley and one hundred fifty
for each designated section of a whitewater zone on the New River.
A licensee who held a use allocation on the second day of May, one
thousand nine hundred ninety-two, with a use allocation greater
than the minimum allocation established in this subdivision shall
retain such use allocation on each designated section of a
whitewater zone on the moratorium portions of the New and Gauley
rivers subject only to the sale, loss or forfeiture of the license
or to a subsequent action of the commission imposing a reduction in
use allocations pursuant to subdivision (4) of this subsection.
The commission is authorized to increase or decrease minimum use
allocations for the moratorium sections of the New and Gauley
rivers only in accordance with the provisions of subdivisions (4)
and (5) of this subsection. The commission may permit additional
allocations or licenses for whitewater outfitters which are nonprofit entities operating upon the waters of the state upon the
effective date of this section. Except as provided in subdivision
(4), subsection (d) of this section, nothing in this section shall
be deemed to require the reduction of a use allocation granted
under an existing license or to prohibit a commercial whitewater
outfitter from acquiring a license with a use allocation in excess
of the minimum allocations hereby established: Provided, That if
a licensee has sold, leased or assigned his license, or sold or
leased a portion of the use allocation under his license, nothing
herein shall be deemed to have the effect of increasing the use
allocation assigned to such license.

(3) The commission may permit peak-day variances from license
limitations not exceeding ten percent of the use allocation granted
under a license. The commission may permit off-peak-day variances
from license limitations not exceeding twenty-five percent of the
use allocation granted under a license.

(4) If, as result of a study employing the limits of
acceptable change process, the whitewater commission acts to reduce
the aggregate maximum daily use limit for all commercial rafting
licenses on a section of the New River or Gauley River subject to
the license moratorium, the reduction shall be distributed on a
pro-rata basis among all licenses granted for the section in
proportion to an individual license's relative share of the total
use allocation for such river section.

(5) If the limits of acceptable change process results in an increase in the aggregate maximum daily use limit for all
commercial rafting licenses on any section of the New River or
Gauley River subject to a moratorium on new licenses, such increase
shall be divided by the total number of commercial rafting licenses
issued for the relevant section of river and the minimum use
allocation for each such license shall be increased by the nearest
whole number resulting from the division.

(6) If any party contracts to purchase a license containing a
use allocation for a moratorium section of the New River or the
Gauley River, or if a licensee has obtained, or in the future shall
obtain additional use allocations for a moratorium section by lease
or purchase from another licensee, the commission shall permit the
transfer of such license rights in accordance with the provisions
of subdivision (10), subsection (b) of this section. Unless the
owners of a license otherwise agree, when two or more licensees
share ownership or control of the use allocation assigned to a
license, any increase or decrease in use allocations which results
from an action of the commission under subdivisions (4) and (5) of
this subsection shall be distributed by the commission between such
owners in proportion to their ownership or control of the use
allocation assigned to such license.

(e) In the event the commission determines through an
appropriate study and the limits of acceptable change process that
a whitewater zone or a designated section of a whitewater zone on
waters other than the moratorium sections of the New and Gauley rivers requires implementation of use allocations, all whitewater
rafting licenses issued for such zone or section thereof shall be
given the same use allocation.

(f) Violation of this section or any rule promulgated pursuant
to this section constitutes a misdemeanor punishable by the
penalties set forth in section twenty-three-d of this article.

(g) The director of the division of natural resources shall
promulgate, pursuant to the provisions of chapter twenty-nine-a of
this code, all rules necessary to effectuate the purposes of this
section and these rules must be approved by the commission. The
division of natural resources shall enforce the provisions of this
section and rules promulgated pursuant to this section, and shall
provide necessary staff and support services to the commission to
effectuate the purposes of this section.

(h) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed to
become effective pursuant to any prior enactments of this section
by the governor, the secretary of the department of commerce, labor
and environmental resources, the director of the division of
natural resources, the whitewater advisory board or by a court of
competent jurisdiction, and which are in effect on the effective
date of this section, shall continue in effect according to their
terms until modified, terminated, superseded, set aside or revoked
by the governor, secretary, director or commission pursuant to this section, by a court of competent jurisdiction, or by operation of
law.

Note: WV Code updated with legislation passed through the 2015 Regular Session
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